Setting the Record Straight: Water Rights Protection Act

Setting the Record Straight on the Water Rights Protection Act

By: Michael Berry, President of the National Ski Areas Association (NSAA)

In response to the March 15 Denver Post editorial and Scott Willoughby’s March 19 Post article on ski area water rights, the ski industry would like to set the record straight on why the Water Rights Protection Act is necessary, and why we will continue to work to improve the bill to ensure its passage in the Senate.

At the outset, ski areas would like to make it clear that we agree with conservation interests, Congressman Polis and others who have called for a significant narrowing of the bill. NSAA requested a narrowing of the bill in writing on February 10, long before the bill was put to a vote on the House floor in March. Ski areas support amendments that would make it clear that this bill has nothing to do with bypass flows, and instead is aimed at solving the concrete problem at hand: Forest Service encroachment with respect to ski area water rights. We strongly support the House amendment that clarified that the bill has no effect on implementation of the Endangered Species Act. We will continue to work on narrowing this bill further in the Senate.

There is overwhelming consensus that the Forest Service over-reached in 2011/2012 by demanding transfer of ownership of valuable ski area water rights as a permit condition. During last week’s floor vote, 238 House members voted in favor of HR 3189. One hundred and seventy five (175) Democrats voted in favor of the Polis amendment, which prohibited the Forest Service from taking ski area water rights through a permit condition. In all, over 400 members in the House voted against Forest Service encroachment of ski area water rights.

The reason that there is consensus among these legislators and other stakeholders that the Forest Service needs to be checked when it comes to ski area water rights is that water does not run with the land in the west. This is where the Post editorial and Scott Willoughby get it wrong. The Post’s editorial and Mr. Willoughby’s comments are both based on the mistaken assumption the Forest Service “allows” ski areas to use water that originates on Forest Service land. This assumption has no legal basis. It is like saying the Forest Service “allows” ski areas to own gondolas and snow cats. Water rights are real property interests under the law. Ski areas don’t get water rights from the Forest Service, because with the exception of reserved water rights – which are not at stake here - the Forest Service doesn’t own the water that originates on Forest Service land. Ski areas apply for and perfect water rights under state law in state water court. Recent and past Post editorials have botched this crucial fact, and in turn, misled readers about this important issue. Mr. Willoughby goes so far as to identify as a “glitch” the fact that water rights developed by ski areas are not required to “stay with the public land” operated by the ski area. This so-called glitch is the very foundation of water law in the west. Again, water does not run with the land. It is privately developed and owned by beneficial users who apply for and protect their ownership in state court.

Finally, Mr. Willoughby is mistaken in claiming that a regime where ski areas own their water rights “allows private water users to dry up rivers as they see fit.” He must not be aware that minimum stream flow requirements are in place for virtually every river, stream and tributary in Colorado. The Colorado Water Conservation Board sets and enforces these limits, not the federal government. Ski areas support and abide by these state requirements – and HR 3189 would not change or impact these requirements in any way. Ski areas do not dry up rivers now, nor would they if HR 3189 were enacted.